JACK WASSERMAN* The Involuntary Expatriation of Statutory Americans I. During World War 11, thousands of GIs in the uniform of the United States armed forces were naturalized abroad under the Second War Pow- ers Act.1 Many prominent United States citizens were not born within the jurisdiction of the United States. George Romney was born in Mexico. Senator Barry Goldwater was born in the territory of Arizona before it became a state. Franklin D. Roosevelt Jr. was born in Canada.2 All of these loyal Americans will be shocked and amazed to learn that since April 5, 1971, when the Supreme Court of the United States decided the case of Rogers v. Bellei, (No. 24, Oct. Term, 1970), they possess a citizenship of inferior quality. In the words of the majority opinion of the Supreme Court, they were not born in the United States, they were not naturalized in the United States and they are simply not Fourteenth-Amendment-first-sentence cit- izens. Their failure to possess constitutional citizenship, it would appear, permits Congress to prescribe forfeiture of citizenship upon the basis of foreign residence. This authority is denied to Congress in the cases of those born or naturalized in the United States and subject to our jurisdic- tion. Schneider v. Rusk, 377 US 163 (1964). To understand the latest pronouncement of the Supreme Court, analysis is required of our citizen- ship and expatriation laws and their background. II. Our expatriation laws had a simple beginning. While a law for the acquisition of United States citizenship by naturalization was enacted as early as 1790, it was not until nearly a century later, in 1868, that the first *Members of the District of Columbia and New York Bars; former Member of the Board of Immigration Appeals, Department of Justice. 156 Stat. 182, 187; Act of.March 27, 1942; Naturalization of Aliens in Our Armed Forces, I & N MONTHLY REV., Sept. 1943; Hazard, My Naturalization Work in the Pacific War Theater, I & N MONTHLY REV., March, 1945. 2 See, Gordon, Who Can Be President of the United States: The Unresolved Enigma, XXV III MARYLAND L. REV. 1 (1968). InternationalLawyer, Vol. 5, No. 3 414 INTERNATIONAL LAWYER expatriation statute was enacted. Prior to its enactment, it was contended that in conformity with the English common law, citizenship was immu- table.3 On July 27, 1868, Congress enacted a joint resolution declaring that expatriation was "a natural and inherent right of all people, ' 4 an assertion which "seems a logical concomitant of the extensive practice of natural- 5 ization in this country." Until the passage of the 1907 Expatriation Act, Congress did not pro- vide any legislative guide for administrative action in declaring citizenship forfeit. Pursuant to a 1906 joint resolution, three State Department officials had submitted a report to Congress 6 which resulted in the enactment of the 1907 Act. 7 This Act provided that no person should be allowed to ex- patriate himself when the United States was at war, and prescribed ex- patriation when a citizen (1) was naturalized in a foreign state in con- formity with its laws; (2) took an oath of allegiance to a foreign state; and (3) married a male foreigner and took his nationality. Naturalized Ameri- cans residing abroad for two years in their country of origin or five years elsewhere did not lose citizenship, but were deprived of diplomatic protec- tion. The Nationality Act of 1940, based on recommendations of the Secre- tary of State, the Attorney General and the Secretary of Labor 8 became effective on January 13, 1941. 9 The grounds of expatriation were increased to ten. Foreign military or civil service, voting in foreign elections, renun- ciation before a United States consul abroad and in limited cases in the United States, treason, draft dodging, and in the case of naturalized cit- izens foreign residence, were added as grounds of expatriation. The provision for the expatriation of naturalized citizens who reside in the country of their birth or former nationality was proposed because of the large number of naturalized citizens residing abroad. It was urged that by the expatriation of these "nominal" citizens who resided abroad for insufficient reasons, the difficulty and embarrassment to the United States 39 Op. ATTY GEN. 356 (1859): Tsiang, The Question of Expatriation in the United States Prior to 1907(1942) p. 45. 415 Stat. 223; re-enacted in Revised Statutes, secs 1999, 2000, 2001. We reaffirmed this declaration at the Conference for the Codification of International Law, held at The Hague in 1930. See III HACKWORTH, DIGEST OF INTERNATIONAL LAW 161- 165 (1942). Article 15(2) of the Universal Declaration of Human Rights provides that no one shall be denied the right to change his nationality. 5 6Tsiang, op. cit. supra, note 3 at 112. Citizenship of the United States, Expatriation and Protection Abroad, H. Doc. No. 326, 59th Cong. 2d Sess. 734 Stat. 1228. 8Hearings before the House Committee on Immigration and Naturalization on H.R. 6127, superseded by H.R. 9980, 76 Cong. Ist Sess. (1940). 954 Stat. 1174. International Lawyer, Vol. 5, No. 3 The Involuntary Expatriationof Statutory Americans in its efforts to extend protection to other naturalized citizens in mer- itorious cases, would be lessened. On the other hand, it was recognized that this provision for the loss of citizenship although fully warranted, "may appear to be somewhat dras- tic." 10 The expatriation provision for naturalized citizens residing abroad for five years in any foreign country was added as a result of the testimony of a State Department official who believed that there were too many naturalized Russian and German Zionists going to Palestine." It was concluded that "as proceedings in the courts would be cumbersome, long-drawn-out and expensive to the government, the termination of na- tionality should be automatic, resulting directly from the fact of foreign residence."12 The Immigration and Nationality Act of 1952 continued the expatriating provisions of the 1940 Act with some changes.' 3 It added a provision authorizing expatriation of persons who acquired dual nationality at birth and "voluntarily sought or claimed benefits" of their foreign nationality and resided in the foreign state for three continuous years after the age of 22.14 The Act also creates a conclusive presumption that an expatriating act is performed voluntarily if, at the time of the act, a person was a national of the state in which the act was performed and had been in the state for a period aggregating ten years or more immediately prior to such act.' 5 This provision is of questionable constitutionality. 16 A 1954 amendment added conviction for rebellion, insurrection, seditious conspiracy and advocating the unlawful overthrow of the Government as further grounds of ex- patriation. 17 From the days when people believed in the English doctrine of immu- table allegiance, to the time when we merely declared that a person had a right to cast off his citizenship, we proceeded to a point at which our statutory laws provided more grounds than any other country in the world for loss of citizenship. 18 By a series of Supreme Court decisions, the expatriation laws of the United States were seriously restricted.' 9 "'Hearingson H.R. 6172, op. cit. 495; Senate Misc. Report 2150, 76th Cong. 3d Sess. p. 4. "Hearing on H.R. 6127, op. cit. 140- 141. .121d., at 495. "38 USC 1481 etseq. 4 1 1d., 1482. 151d., 148 1(b). "'Manley v. Georgia, 279 US 1 (1928); Schlesinger v. Wisconsin, 270 US 239 (1925); Heiner v.Donnan, 285 US 312 (1931). 178 USC 1481(a)(9) as amended by 68 Stat. 1146. "'See: Laws Concerning Nationality, United Nations Legislative Series (1954). "'See: Duvall, ExpatriationUnder United States Law, Perez to Afroyim: The Search for a Philosophy of American Citizenship, 56 VIRGINIA L. REV. 408 (1970). InternationalLawyer, Vol. 5, No. 3 416 INTERNATIONAL LAWYER In Trop v. Dulles, 356 US 86 (1958) expatriation on the basis of a desertion conviction was found to be cruel and unusual punishment in contravention of the Eighth Amendment. Kennedy v. Mendoza-Martinez, 372 US 144 (1963), declared unconstitutional provisions for expatriation based on departure from the United States to evade military service. It was held that punishment was thereby inflicted without the procedural safeguards of the Fifth and Sixth Amendments. Schneider v. Rusk, 377 US 163 (1964) invalidated the expatriation section providing for loss of citizen- ship by a naturalized American who resided for three years in the country of his birth or former nationality. The Court said: This statute proceeds on the impermissible assumption that naturalized citizens as a class are less reliable and bear less allegiance to this country than do the native born. This is an assumption that is impossible for us to make. Moreover, while the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is 'so unjustifiable as to be violative of due process.' * * * A native-born citizen is free to reside abroad in- definitely without suffering loss of citizenship. The discrimination aimed at naturalized citizens drastically limits their rights to live and work abroad in a way that other citizens may. It creates indeed a second-class citizenship. Living abroad, whether the citizen be naturalized or native-born, is no badge of lack of allegiance and in no way evidences a voluntary renunciation of nationality and allegiance. It may indeed be compelled by family, business, or other legitimate reasons. 20 Afroyim v. Rusk, 387 US 253 (1967) involved a naturalized citizen who voted in an Israeli legislative election. Expatriation on this basis was declared unconstitutional, and the prior holding to the contrary in Perez v.